McGRUDER v. GRAY (1999)

 In this negligence action arising from a motor vehicle accident, Supreme Court properly refused to admit in evidence photographs of the intersection where the accident occurred.   Plaintiff failed to demonstrate that the photographs fairly and accurately depict the scene of the accident or that the photographs were taken under the same lighting conditions (see, People v. Mixon, 203 A.D.2d 909, 910, 611 N.Y.S.2d 723, lv. denied 84 N.Y.2d 830, 617 N.Y.S.2d 150, 641 N.E.2d 171, 84 N.Y.2d 909, 621 N.Y.S.2d 526, 645 N.E.2d 1226;  see also, Clancy v. Port of New York Auth., 55 A.D.2d 587, 588, 389 N.Y.S.2d 615).   The changed conditions depicted in the photographs affected important issues in the litigation (cf., Saporito v. City of New York, 14 N.Y.2d 474, 477, 253 N.Y.S.2d 985, 202 N.E.2d 369).  Further, the court properly denied plaintiff's motion to set aside the verdict as against the weight of the evidence.  “A motion to set aside a verdict should not be granted ‘unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence’ ” (Kash v. Kroeger, 222 A.D.2d 1101, 1102, 635 N.Y.S.2d 852, quoting Dannick v. County of Onondaga, 191 A.D.2d 963, 964, 595 N.Y.S.2d 575).   The parties presented conflicting testimony on the issue whether the accident occurred in plaintiff's or defendant's lane of traffic, and we perceive no basis in the record to disturb the jury's resolution of that issue, which turned on the credibility of the parties (see, Holmes v. Weissman, 251 A.D.2d 1078, 1079-80, 674 N.Y.S.2d 215).

Judgment unanimously affirmed without costs.

MEMORANDUM: